CRIMINAL LAW - Circumstantial evidence - Standard of proof of facts from which inferences drawn - Shepherd v. R. (1990) 170 C.L.R. 573, Gipp v. R. (1998) 72 A.L.J.R. 1012 and Penney v. R. (1998) 72 A.L.J.R. 1316 considered - Evidence of identification of objects, what is - Whether Faure warning necessary because witness hated applicant - Lies in setting up "hideaway" before offence - Edwards direction unnecessary - Whether charge unbalanced - Non-direction as to expert evidence and as to disregarding judge's comments - Absence of exceptions - Aggregation of defects amounting to miscarriage.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr. D.G. Just
P.C. Wood, Solicitor for Public Prosecution
For the Applicant
Mr. P.F. Tehan, Q.C.
Leanne Warren &
PHILLIPS, C.J.:
The Court had hoped to give judgment in this matter during the final term of last year but, during the period judgment was reserved, the decision of the High Court in Penney v. R. (1998) 72 A.L.J.R. 1316 was given. This necessitated the seeking of further written submissions from counsel. Then, during research, a member of the Court came upon the decision of the Court of Criminal Appeal of New South Wales in R. v. Pantoja, where judgment was given on 5 November, 1998. Again, it was necessary to seek further submissions from counsel.
As to the application touching conviction, I have had the benefit of reading the judgment of Batt, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor. The postcript to the judgment of Callaway, J.A. shows that all members of the Court are agreed that the interpretation of Shepherd’s Case in paragraphs 16 and 17 below should continue to be applied.
In my opinion, the circumstance that no member of the Court mentioned Shepherd in Penney’s Case is conclusive. It cannot be, I think, that it was their Honours’ intention to alter the law as it was understood post Shepherd, for when the decision in Shepherd was given it occasioned much comment amid the circles of the judiciary, practitioners in criminal law and academia. This occurred because Shepherd revealed as incorrect a hitherto widespread understanding of Chamberlain v. R [No. 2] (1984) 153 C.L.R. 521.
I agree with the conclusions of Callaway, J.A. as to the disposition of the application in the matter of sentence and I would subscribe to his Honour’s reasons therefor.
CALLAWAY, J.A.:
The applicant, who is now aged 30, pleaded not guilty in the County Court to a presentment containing one count of armed robbery ("the first presentment") and guilty to a presentment containing one count of attempted armed robbery, two counts of armed robbery and two counts…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Kotzmann [1999] VSCA 27
Case
[1999] VSCA 27
Decision Date
CaseChat Overview and Summary
In the case of R v Kotzmann, the applicant was convicted of armed robbery following a lengthy and complex legal process, which included multiple trials. The applicant appealed against both his conviction and the sentences imposed. The central issue before the court was whether the applicant's right to a fair trial was compromised due to deficiencies in the trial's conduct, specifically the lack of explicit directions regarding expert witnesses and the assessment of evidence. The court also considered the strength of the Crown's case against the applicant and whether it warranted a re-trial.
The court found that the trial had significant procedural errors, which collectively deprived the applicant of a fair trial. The omission of explicit directions regarding expert witnesses and the absence of any direction on the assessment of evidence were critical issues. The court acknowledged the strength of the evidence against the applicant but concluded that these procedural deficiencies were substantial enough to warrant the quashing of the conviction. The court decided not to enter a judgment of acquittal, leaving the decision on a potential re-trial to the Director of Public Prosecutions. Additionally, the court addressed the applicant's appeal against his sentences, agreeing with the re-sentencing proposal by Callaway, J.A., and re-opening the sentencing discretion.
The court allowed the applicant's appeal against his conviction, quashed the conviction, and re-opened the sentencing discretion. The case highlights the importance of proper trial conduct and the significant impact that procedural errors can have on the fairness of a trial and the final outcome.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
A-C J
The charge here could not be described as a model charge. In the end, I have come to the conclusion, with some hesitation and reluctantly, that the applicant did not have, as he was, despite the strength of the Crown case, entitled to have, a fair and proper trial by reason principally but not only, of the omission of explicit directions as to expert witnesses and judicial comments and the omission of any direction whatsoever about the assessment of evidence (which, although not a ground, was adverted to in argument). Conviction: Conclusion It follows the application for leave to appeal against conviction succeeds and the conviction must be quashed. Although that conviction was sustained on the fourth trial of the applicant on this charge of armed robbery, I would not direct the entry of a judgment and verdict of acquittal both because of the strength of the Crown case and because only one of the earlier trials proceeded as far as the retirement of the jury to consider their verdict. Nor was the Court invited to take that course in the event that the application succeeded. The question whether a re-trial is to occur should be a matter for the Director of Public Prosecutions. Sentence The applicant sought leave to appeal against the sentences imposed in respect of each presentment. It is necessary, therefore, to consider that application so far as it relates to the second presentment. The sentencing discretion is re-opened both for the reason given by Callaway, J.A. and also, as it seems to me, because the directions for cumulation and concurrency depended upon or were affected by the sentence imposed for the armed robbery the subject of the first presentment. I agree with the disposition by way of re-sentencing proposed by Callaway, J.A. and with his Honour's reasons.